Akter (Migration) - [2020] AATA 4229

Akter (Migration) [2020] AATA 4229 (7 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Jesmin Akter
Miss Arya Zunairah Rahman
Miss Lia Zavira Rahman
Mr Ziaur Rahman
CASE NUMBER:  1902293
DIBP REFERENCE(S):  BCC2009/234647
MEMBER:Jade Murphy
DATE:7 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 886 (Skilled - Sponsored) visas:
· Public Interest Criterion 4020 for the purposes of cl.886.225 of Schedule 2 to the Regulations.

Statement made on 07 October 2020 at 4:00pm

CATCHWORDS
MIGRATION – Skilled (Residence) (Class VB) visa – Subclass 886 (Skilled – Sponsored) – Federal Circuit Court remittal – bogus document – false or misleading evidence of work experience provided for skills assessment – 900 hours of work experience – employer’s uncertain identification of applicant from photo – many work experience students – log book and employment letter – spontaneous and detailed oral evidence from employer and applicant – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 359A, 375A
Migration Regulations 1994 (Cth), Schedule 2, cl 886.225, Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 July 2015 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 25 June 2009. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.886.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because there was evidence that she had provided false or misleading information in relation to her claimed 900 hours of work experience which she had relied on for the purposes of a skills assessment dated 20 September 2008.
On 28 July 2015 the applicant applied to the Tribunal for review of the delegate’s decision. The applicants were represented in relation to the review by their registered migration agent.
The applicant appeared before the Tribunal, differently constituted, on 9 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Md Nazimol Haque, the applicant’s claimed former employer and Mr Mohammad Monirul Islam, Mrs Akter’s brother.
The Tribunal also considered the following submissions and evidence provided by the applicant’s migration agent:
·Submissions of the applicant’s migration agent dated 2 May 2016.
·Statutory declaration of Mr Haque, the applicant’s claimed employer dated 30 April 2016.
On 22 February 2016 the Tribunal requested information from the Department concerning the site visit conducted at the applicant’s claimed place of employment on 27 May 2011, referred to in the decision of the delegate.
On 2 March 2016 the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Akter (Migration)

Details

AGLC: Akter (Migration) [2020] AATA 4229
Case: [2020] AATA 4229
Decision Date: 7 October 2020

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Residence) (Class VB) visa, Subclass 886 (Skilled – Sponsored), brought before the Administrative Appeals Tribunal. The central dispute revolved around whether the applicant had provided a bogus document or false or misleading information in relation to their application, specifically concerning evidence of work experience required for a skills assessment. The Tribunal was tasked with determining the applicant's compliance with Public Interest Criterion (PIC) 4020.

The legal issues before the Tribunal were whether the applicant had provided a bogus document or information that was false or misleading in a material particular, as defined by PIC 4020(1) and section 5(1) of the Migration Act 1958. The Tribunal also considered the applicant's identity requirements under PIC 4020(2A) and whether any previous visa refusals were due to a failure to satisfy PIC 4020. The Tribunal noted that while PIC 4020(1) and (2) could be waived under certain compelling or compassionate circumstances, this waiver did not extend to the identity requirements under PIC 4020(2A) and (2B).

The Tribunal reasoned that despite initial concerns regarding the employer's ability to identify the applicant from a photograph and the presence of many work experience students, the applicant had provided sufficient evidence. This included a statement from the employer, a timeline of events, a contract estimate, a wages and record book, a skills assessment, and an employment letter. Crucially, the Tribunal found that the spontaneous and detailed oral evidence provided by both the employer and the applicant, in addition to the documentary evidence, satisfied the requirements of PIC 4020. The Tribunal concluded that there was no evidence that the applicant had provided a bogus document or false or misleading information in relation to their application.

Consequently, the Tribunal remitted the applications for Skilled (Residence) (Class VB) visas for reconsideration, with a direction that the first named applicant met the criteria for Subclass 886 (Skilled - Sponsored) visas, specifically Public Interest Criterion 4020.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.886.225 for the grant of the visa. Broadly speaking, this requires that:·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA). The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular? In addition to the Department file, and previous AAT review file, the applicant provided the following for the purposes of this review:·Submissions of the applicant’s migration agent dated 23 September 2020;·Statement of Mr Haque dated 24 September 2020;·Timeline of events provided by the applicant’s migration agent dated 24 September 2020;·A Contract Estimate for the construction of a double story house signed by the applicant on 30 July 2020;·Wages and Record Book relating to the applicant’s employment;·TRA Skills Assessment dated 20 September 2008; and ·Employment letter issued by Mr Haque dated 25 August 2008. The Tribunal has had regard to all documents contained in the Department file, previous AAT file and the above in relation to this review. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

Decision

Reasons for decision

Based on the above, the applicant does satisfy PIC 4020 for the purposes of cl.886.225.DECISION The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 886 (Skilled - Sponsored) visas:·Public Interest Criterion 4020 for the purposes of cl.886.225 of Schedule 2 to the Regulations.Jade MurphyMemberATTACHMENTMigration Regulations 1994Schedule 44020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:(a)the application for the visa; or(b)a visa that the applicant held in the period of 12 months before the application was made.(2)The Minister is satisfied that during the period:(a)starting 3 years before the application was made; and(b)ending when the Minister makes a decision to grant or refuse to grant the visa;the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(2A)The applicant satisfies the Minister as to the applicant’s identity.(2B)The Minister is satisfied that during the period:(a)starting 10 years before the application was made; and (b)ending when the Minister makes a decision to grant or refuse to grant the visa;neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:(a)compelling circumstances that affect the interests of Australia; or(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;justify the granting of the visa.(5)In this clause:information that is false or misleading in a material particular means information that is:(a)false or misleading at the time it is given; and(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information. …Migration Act 1958s.5 Interpretation(1) In this Act, unless contrary intention appears:…bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:(a)purports to have been, but was not, issued in respect of the person; or(b)is counterfeit or has been altered by a person who does not have authority to do so; or(c)was obtained because of a false or misleading statement, whether or not made knowingly. …

Ratio Decidendi

Legal Principle Established

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